Citation Nr: 1236724
Decision Date: 10/23/12 Archive Date: 11/05/12
DOCKET NO. 09-05 769 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for complete C7 quadriplegia.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America, Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Riley, Counsel
INTRODUCTION
The Veteran served on active duty from October 1992 to October 1996 with subsequent unverified service in the Marine Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in February 2011. A transcript of the hearing is of record.
In June 2011, Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action.
FINDING OF FACT
The Veteran's complete C7 quadriplegia is not etiologically related to a period of active military service.
CONCLUSION OF LAW
Complete C7 quadriplegia was not incurred or aggravated due to active service. 38 U.S.C.A. §§ 101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2011).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran contends that service connection is warranted for complete C7 quadriplegia as it was the result of a motor vehicle accident that occurred while he was traveling to a period of Reserve service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).
The record clearly shows a current disability. On May 27, 1998, the Veteran was involved in a roll over motor vehicle accident that resulted in a fracture to his cervical spine. Records from various private medical facilities dated from May and June 1998 show that the Veteran's accident occurred when he fell asleep at the wheel. In June 1998, he was diagnosed with complete cervical quadriplegia and has continued to receive treatment for this condition and other associated disabilities. The record therefore establishes the presence of a chronic disability diagnosed as complete C7 quadriplegia.
The Board must now determine whether the Veteran's disability was incurred or aggravated during a period of active service to allow for a grant of service connection. Under 38 U.S.C.A. § 101(24) "active military, naval, or air service includes active duty, any period of active duty service for training [ACDUTRA] during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training [INACDUTRA] from an injury incurred or aggravated in line of duty during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty."
The record clearly verifies the Veteran's period of active duty service with the Marine Corps from October 1992 to October 1996. However, he also served with the Marine Reserve following his separation from active duty. For the purposes of determining service connection based on Reserve service, ACDUTRA means full-time training duty, where the service member is available for duty around-the-clock performed by the Reserve components. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Annual two-week training is an example of ACDUTRA. Inactive duty training (INACDUTRA) is training duty, other than full time, performed by the Reserve components. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA or for injury incurred in or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. In other words, service connection is available for injuries, but not diseases, sustained on INACDUTRA. Brooks v. Brown, 5 Vet. App. 484 (1994).
During the February 2011 hearing, the Veteran testified that his May 1998 motor vehicle accident and resulting cervical quadriplegia were incurred while he was traveling to report for a period of Reserve service. Any individual (1) who, when authorized or required by competent authority, assumes an obligation to perform ACDUTRA or INACDUTRA for training; and (2) who is disabled or dies from an injury or covered disease incurred while proceeding directly to or returning directly from such ACDUTRA or INACDUTRA shall be deemed to have been on ACDUTRA or INACDUTRA, as the case may be. 38 C.F.R. § 3.6(e). Although the Veteran's testimony did not distinguish whether the reported period of Reserve service in May 1998 was for active or inactive duty, as the disability in this case is the result of an injury, both ACDUTRA and INACDUTRA would qualify as active military service for the purposes of awarding service connection.
In order to establish service connection, the evidence in this case must demonstrate that the Veteran was proceeding directly to a period of Reserve service at the time of his May 1998 motor vehicle accident. The Veteran's service and personnel records are entirely negative for evidence that he was ordered to a period of Reserve service in May 1998. Available pay records from 1998 also do not demonstrate that the Veteran served any active or drill Reserve service. The Board also notes that the Veteran has been unable to identify his specific Marine Reserve unit. In fact, during the February 2011 hearing, he testified that he could only recollect that he was assigned to the 4th Marine Division at Treasure Island in San Francisco, California. That division has been decommissioned and its components are located throughout the country. All attempts to obtain additional records from the 4th Marine Division have been unsuccessful and the Veteran has been unable to provide copies of any correspondence or travel orders that would establish he was traveling to Reserve duty on May 27, 1998.
In sum, there is no objective evidence documenting that the Veteran was reporting for a period of Reserve service at the time of his motor vehicle accident in May 1998. The Veteran testified that his injuries were incurred while proceeding directly to a period of Reserve service, but there is simply no official service department verification of such orders and the Veteran has been unable to provide any additional details or documentation in support of his claim. The Board finds that the Veteran's statements, without any corroboration, are not sufficient to establish that he was serving on a period of active military service in May 1998. Although the Veteran is competent to report periods of Reserve service, the credibility of his statements is lessened due to their vagueness, the Veteran's obvious difficulty in recalling events that occurred almost ten years prior, and the purpose of the statements-given in support of a claim for compensation.
The evidence unequivocally establishes that the Veteran's complete C7 quadriplegia was due to a motor vehicle accident that occurred on May 27, 1998. However, the Veteran was not serving on a period of active military service at the time of the accident, to include proceeding directly to a period of ACDUTRA or INACDUTRA, and service connection for the disability must be denied.
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).
VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).
In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in an October 2007 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the October 2007 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4).
VA has obtained records of treatment reported by the Veteran, including service treatment records and records from the Social Security Administration (SSA), which included copies of the Veteran's VA and private medical records. VA has also obtained the Veteran's personnel records and available copies of his pay records from the Defense Finance and Accounting Service (DFAS).
The Board also finds that VA has complied with the June 2011 remand orders of the Board. In response to the Board's remand, VA made efforts to obtain records from the Veteran's Marine Reserve unit, identified as the 4th Marine Division at Treasure Island. Although this division has been decommissioned, VA made multiple requests for any available records pertaining to the Veteran from Marine Corps facilities in Alameda and San Francisco in California and Quantico, Virginia. VA also contacted the existing 4th Marine Division in New Orleans, Louisiana in an attempt to obtain additional personnel records. In August 2009 and June 2012, VA received responses from the 4th Marine Division and Marine Corps headquarters stating that they had no records pertaining to the Veteran. Furthermore, through additional records requests to the National Personnel Records Center (NPRC), the Defense Personnel Records Information System (DPRIS), and the DFAS, VA was able to obtain copies of the Veteran's personnel and pay records. The case was then readjudicated in an August 2012 supplemental statement of the case (SSOC). The Board finds that VA has complied with the remand orders of the Board and has exhausted all potential avenues to obtain additional records that pertain to the Veteran's Reserve service.
For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.
ORDER
Entitlement to service connection for complete C7 quadriplegia is denied.
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MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs